Friday, 20 December 2013

An editorial in this morning’s
Times Colonist bears this heading: Malodour
clings to BC Rail issue.

The editorial is a review of the
recent BC Auditor General report on taxpayer-funded indemnities for public
servants charged with criminal offences.My purpose here is not to analyse that report, though it certainly bears
reading, because of its key finding that there was no political interference in
the decision to waive the defence legal fees in the Basi Virk case.My concern is with a perspective held by
the Times Colonist about the trial itself.

The Times Colonist expresses frustration
that the trial ended in the way that it did. Here is some of what they say:

Most
taxpayers, if they had known they were already on the hook for $18 million,
would have willingly spent another $2 million to get some answers. Witnesses
testifying under oath could have provided some of those answers, but that
process was short-circuited. –

The problem is with the phrase,
“To get some answers”. Answers to what?There was only one “question” that needed to be answered in the case:
the guilt or innocence of the accused.That question was definitively answered.The case was not about anything else. It was a criminal
trial.Full stop.There were no more questions to be answered.

The Times Colonist says,
“Witnesses testifying under oath could have provided some of those answers, but
that process was short-circuited.” I disagree with both the premise and the
conclusion.The function of the
witnesses in the trial was not to provide “answers” to a wide range of
questions about the BC Rail “scandal.” It was to give evidence relevant to the
question of the guilt and innocence of the accused.And the trial was not short-circuited. It ended with a guilty plea, a
voluntary admission to the offence. An admission, in other words, that the cases against the accused were going to be proved beyond a reasonable doubt.That the defences offered during the case – and that presumably
informed the lengthy cross-examinations of the Crown witnesses – did not hold
water; were, if I may put it this way, fishing expeditions without fish.

The Times Colonist presumably
wishes that the Basi Virk trial had been a royal commission.It wasn’t.The criminal justice process is already burdensomely complex
and expensive.Arguing that it
should serve wider purposes of public inquiry than the guilt or innocence of
those accused of crimes, runs contrary to what we should really focus on,
namely how to make criminal trials faster, shorter, and less expensive, without
compromising the right of an accused to require the Crown to prove the case beyond
a reasonable doubt.The questions
to be asked in the aftermath of the Basi Virk trial are about why the trial and
pretrial took so long and cost so much, and what we can learn to do a better
job of managing such cases.Those,
I respectfully submit, are the real questions that still need answering.